South Carolina Supreme Court Authorizes Advocate Program

By: Sean Tropea – Georiga, South Carolina Licensed Attorney with Brownlee Whitlow & Praet, PLLC

Introduction?

On February 8, 2024, the South Carolina Supreme Court (“SCSC”) issued an order (“Order”) authorizing a petition from the South Carolina State Conference of the NAACP, the South Carolina Housing Advocate Program (“Housing Program”), and three (3) prospective non-lawyer volunteers for the Housing Program (collectively “Petitioners”),allowing non-lawyer volunteers to provide free, limited assistance to residents facing eviction in SC magistrate courts.

What is the Basis for the Housing Advocate Program?

The Petitioners argue there is “critical” need to assist persons facing eviction in SC magistrate court and that free, limited non-lawyer assistance should be available to address this need.

In support of these arguments, Petitioners cited a 2021 report from the South Carolina Access to Justice Commission, which indicates more than 99% of defendants (i.e., residents) in eviction cases are not represented by lawyers. Additionally, Petitioners cited a 2023 South Carolina Statewide Civil Legal Needs Assessment, which argued eviction defense is a pressing area of need and that residents are unrepresented in court or do not appear at all.

According to the Petitioners, the Housing Program is intended to allow non-lawyer volunteers to provide limited assistance to residents facing eviction so the residents may better understand their rights and access to SC courts.

Why the South Carolina Supreme Court??

The short answer: to ensure the Housing Program’s non-lawyer volunteers will not engage in conduct that constitutes unauthorized practice of law (“UPL”), which is a criminal offense in SC that may subject an offender to imprisonment and fines.

In SC, applicable UPL authority urges “any interested individual” who becomes aware of conduct that may constitute UPL to take conservative action by bringing a declaratory judgment action before the SCSC to determine the validity of the conduct. Thus, the Petitioners turned to the SCSC to obtain a declaratory judgment (i.e., formal determination) that the conduct of the non-lawyer volunteers does not constitute UPL.

How is this not Unlicensed Practice of Law?

SC generally limits the practice of law to licensed attorneys or persons authorized to perform prescribed legal activities by action of the SCSC so the public may be protected from incompetent, unethical, or irresponsible representations. Given the inherent adversarial environment of any court system, namely a magistrate court, there is undoubtedly a palpable premise for an over-zealous non-lawyer volunteer (who are even referred to as “[a]dvocates” by the Order) to engage in conduct that crosses the line between permissible, limited conduct and that which may be deemed UPL.

So, where exactly is that line? Since the SCSC has previously held that it is better to determine the question of what conduct constitutes UPL in context of an actual case and controversy, the SCSC attempted to shed some light on this essential inquiry in context of the Housing Program so its non-lawyer volunteers and any housing providers (including any SC-licensed lawyers representing those housing providers) may be mindful of what conduct is permissible – some noteworthy points addressed in the Order are below:

• The SCSC requested that the Petitioners provide data and performance metrics so the conduct of the Housing Program’s non-lawyer volunteers may be evaluated.
• The SCSC requested that the Petitioners provide information detailing how the non-lawyer volunteers would be qualified, trained, and supervised.
• Residents should be advised that the non-lawyer volunteers are not lawyers, and these non-lawyer volunteers must strictly limit the information provided to residents.
• Non-lawyer volunteers should complete an educational program that is supposed to total twelve (12) hours of training.
• Non-lawyer volunteers should be supervised and evaluated by a lawyer affiliated with the NAACP
• Non-lawyer volunteers should refer residents to legal service providers whenever the non-lawyer volunteers encounter issues that are beyond the scope of the Housing Program.
• If non-lawyer volunteers engage in UPL, they may be suspended and subject to imprisonment and fines.

The Road Ahead

The SCSC approved the Housing Program on a provisional, pilot basis for a term of three (3) years, unless extended or terminated by the SCSC, which will engage in ongoing evaluation of the Housing Program by way of reviewing reports that must be submitted the SCSC on an annual basis. These reports must include certain data and metrics, as well as a comprehensive, written summary of activities conducted by the Housing Program.

Since the Order has now authorized the Housing Program, SC housing providers pursuing eviction may begin encountering trained and supervised non-lawyer volunteers who do not have the comprehensive education and capabilities of a licensed lawyer but may have enough resources available to warrant some housing providers re-evaluating and adjusting their approach.

If you are interested in learning more about the Order, Housing Program, or the general eviction process in South Carolina, contact our team today!

Source: https://www.sccourts.org/courtOrders/PDFs/2024-02-08-02.pdf?

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